” Order modified, on the law, by granting plaintiff’s motion only to the extent of the following:
SCHAEFFER v. ELI LILLY & CO., Leagle, 1985940113AD2d827_1748, September 16, 1985.
ORDERED, that plaintiff shall have summary judgment with respect to the following issues:
- That Diethylstilbestrol (DES) was not reasonably safe in the treatment of accidents of pregnancy (miscarriages) when it was allegedly ingested by plaintiff’s mother in 1954;
- That in 1954 when plaintiff’s mother allegedly ingested DES, the defendant as a reasonably prudent drug manufacturer should have foreseen that DES might cause cancer in the offspring of pregnant women who ingested the drug;
- Foreseeing that DES might cause cancer in the offspring of pregnant women who took it, a reasonably prudent drug manufacturer would have tested it on pregnant mice before marketing it;
- Had the defendant tested DES on pregnant mice before marketing it, it would have shown that DES causes cancer in offspring;
- That a reasonably prudent drug manufacturer would not have marketed DES for use in treating accidents of pregnancy in 1954 if it had known that DES causes cancer in the offspring of pregnant mice.
As so modified, order affirmed, without costs or disbursements.
The appeal is here because Special Term granted plaintiff’s motion for partial summary judgment, invoking third-party issue preclusion to bar defendant from relitigating various liability issues that were determined in an earlier DES action entitled Bichler v Lilly & Co. Special Term’s order precluded the defendant from relitigating its liability for marketing DES for use in preventing miscarriages without adequate testing.” …
… read the full paper SCHAEFFER v. ELI LILLY & CO., on Leagle.